Loading...
HomeMy WebLinkAbout966631RECEIVED 9/4/2012 at 3:49 PM RECEIVING 966631 BOOK: 793 PAGE: 310 JEANNE WAGNER LINCOLN COUNTY CLERK, KEMMERER, WY DEED OF CONSERVATION EASEMENT 00310 THIS DEED OF CONSERVATION EASEMENT is made by Clark Country Ranch, LLC in Lincoln County, Wyoming "Grantor in favor of the Wyoming Stock Growers Agricultural Land Trust "Grantee a non profit charitable corporation incorporated under the laws of the State of Wyoming and in good standing in the State of Wyoming, with its principal business office at 113 East 20th Street, Cheyenne, Wyoming 82001 (the "Easement Grantee and Grantor are hereinafter referred to as the "Parties." The United States of America "United States acting by and through the United States Department of Agriculture, Natural Resources Conservation Service "NRCS on behalf of the Commodity Credit Corporation, as its interest appears herein, for the purpose of conserving the Property as set forth herein, has by virtue of its partial funding of Grantee's acquisition of this Easement acquired a contingent right of enforcement and those certain other rights and assurances specifically set forth in this Easement. Clark.clark. wsgalt.pur.ce.final.7.6.12.doc RECITALS A. Grantor is the owner in fee simple of certain unencumbered Agricultural real property known as the Clark Country Ranch, LLC, in Lincoln County, Wyoming, totaling 320 acres more or less, more particularly described in attached Exhibit A (the "Property B. The Property is currently ranch land used for Agricultural production and has significant open space and scenic values. Grantor and Grantee acknowledge that the historical ranching and Agricultural uses of the Property sustain and protect the Property's substantial Conservation Values, as defined herein, and more particularly described in the Baseline Documentation as defined herein. C. This Easement has been acquired in part with a grant from the State of Wyoming Wildlife and Natural Resources Trust (hereinafter referred to as the "WWNRT D. (a) Wildlife and Fisheries Values. The property lies within a Wyoming Sage Grouse Core Area. The property includes approximately 1.3 stream miles of the Smith's Fork River, which provide habitat to Bonneville cutthroat trout. The Clark family has worked with Trout Unlimited to construct a fish screen in place on their irrigation ditch to protect rare fish. The property is located within the Wyoming Game and Fish Department's Aquatic Habitat Crucial Priority Area for the Pinedale region, and within the Wyoming Game and Fish Department's Terrestrial Habitat Crucial Priority Area for the Green River region. Additionally, critical habitat for moose and a migration route for mule deer exist within the property. (b) Location and significance for adjacent public lands and watershed. The Clark Country Ranch is adjacent to one section of State of Wyoming lands to the south and a 90,000 acres Bureau of Land Management (BLM) allotment to the west. The eastern edge of the property is approximately two miles from the Bridger Teton National Forest. A conservation 00311 easement on the property will ensure that private land adjacent to BLM lands and in proximity to National Forest remain intact. (c) Open Space and Scenic Values. The scenic values provided by Clark Country Ranch are outstanding. The property is located 13 miles from Cokeville, Wyoming and is visible from Wyoming Highway 232. The property is located in a valley and is bisected by the Smith's Fork, a primary tributary of the Bear River. The property provides viewscapes of irrigated hay meadows and riparian wetlands. E. The Farm and Ranch Lands Protection Program. Title II, Subtitle E, Section 2401 of the Food, Conservation, and Energy Act of 2008. Public Law 110 16 U.S.C. 3838h and 3838i authorizes the Farm and Ranch Lands Protection Program under which the Secretary of Agriculture, acting through the Natural Resources Conservation Service, facilitates and provides funding for the purchase of conservation easements for the purpose of protecting agricultural uses and related conservation values of eligible land by limiting nonagricultural uses of the land. F. The Farmland Protection Policy Act, P.L. 97 -98, 7 U.S.C. 4201, et seq., the purpose of which is "to minimize the extent to which Federal programs contribute to the unnecessary and irreversible conversion of farmland to nonagricultural uses, and to assure that Federal programs are administered in a manner that, to the extent practicable, will be compatible with State, unit of local government, and private programs and policies to protect farmland;" G. The use of the Property for Agricultural production, the open space and scenic values, the ecological values, and fish and wildlife habitat are of great importance to Grantor, Grantee, the People of Lincoln County, and the people of the State of Wyoming and the United States, and are worthy of preservation. H. Grantor and Grantee intend that the Property be maintained in a condition to allow for Agriculture and other uses of the Property and for the protection of the Agricultural, open space and scenic values of the Property in perpetuity. I. Grantor intends that the Conservation Values of the Property be preserved and maintained by the continuation of land use patterns, including, without limitation, those related to ranching and associated agricultural operations existing at the time of this grant that do not significantly impair or interfere with those values, and the Parties agree that the present ranching and associated agricultural operations do not impair or interfere with the Conservation Values of the Property at the time of this grant. J. Grantor, as the owner in fee of the Property, owns the affirmative rights to identify, to conserve and protect in perpetuity the Conservation Values of the Property. K. Grantor intends to convey to the Grantees the right to preserve and protect the Conservation Values of the Property in perpetuity. L. The specific conservation values of the Property include the use of the Property for agricultural production, open space and scenic values, and the natural habitat of fish, wildlife 2 C ladc.clark. wsgalt.pur.ce. fina1.7.6.12.doc and plants "Conservation Values and are documented in a report to be kept on file at the offices of Grantee, which documentation was prepared by NRCS with the assistance and cooperation of Grantor and WSGALT and dated October 6, 2010, as updated and amended by letters on file in WSGALT's office "Baseline Documentation which the Parties agree provides an accurate representation of the Property as of the effective date of this grant, and which is intended to serve as an objective baseline for monitoring compliance with the terms of this Easement. M. Grantee represents that it is a charitable organization described in Section 501(c)(3) of the Internal Revenue Code of 1986, as amended, and the regulations thereunder (the "Code whose purposes include the conservation of Agricultural lands, wildlife habitats, scenic areas and open space to benefit the community for charitable purposes. N. Grantee represents that it is a "qualified organization," as that term is defined in Section 170(h) of the Code. O. Grantee is also an organization which is qualified to receive funds under the Farm and Ranch Lands Protection Program "FRPP 16 U.S.C. 3838h and 3838i, which is administered by the NRCS, and has an agreement with NRCS for partial funding of the purchase of this Easement, which is Agreement No. 68- 8E49 -0 -43. P. It is the purpose of FRPP to provide funding for the purchase of conservation easements, or other interests in eligible land, which will protect the agricultural use and related conservation values of land by limiting nonagricultural uses of the land. Q. Grantee has received letters from the Internal Revenue Service, on file at the offices of Local Grantee, to the effect that Local Grantee is a "publicly- supported" organization under Sections 509(a)(1) and 170 (b)(1)(A)(vi) of the Code and is not a private foundation within the meaning of Section 509(a) of the Code. R. Grantor and Grantee recognize the scenic, natural, Agricultural, and open space character of the Property, and have the common purpose of the conservation and protection in perpetuity of the Property through the use of restrictions on the Property and with the transfer from Grantor to Grantee of affirmative rights for the protection of the Property, intending the grant of such restrictions and rights to qualify as a "qualified conservation contribution" as that term is defined under Section 170(h)(2)(C) of the Code. S. The conservation purposes of this Easement are recognized by, and the grant of this Easement will serve, at least and without limitation, the following clearly delineated governmental conservation policies: 1. Wyoming Statutes section 34- 1- 201(b)(i) provides for the establishment of conservation easements to protect "natural, scenic or open space values of real property, assuring its availability for agricultural, forest, recreational or open space use Clark.clark. ws ga lt. pur. ce. final. 7.6.12. doc 3 00312 00313 2. Wyoming Statutes section 11- 16- 103(a) provides that, "It is hereby declared that the farm and grazing lands of Wyoming are among the basic assets of the state." 3. Wyoming Statutes section 11- 16- 103(b) provides that, "It is hereby declared to be the policy of the legislature to provide for the conservation of the soil, and soil and water resources of this state, and for the control and prevention of soil erosion and for flood prevention or the conservation, development, utilization, and disposal of water, and thereby to stabilize ranching and farming operations, to preserve natural resources, protect the tax base, control floods, pre -vent impairment of dams and reservoirs, preserve wildlife, protect public lands, and protect and promote the health, safety and general welfare of the people of this state." 4. Wyoming Statutes section 9 -15 -101, et seq., Wildlife and Natural Resource Funding Act (the "Act The Act created an entity known as the Wyoming Wildlife and Natural Resources Trust Account. The WWNRT is empowered to disperse money for several delineated purposes related to conserving the many natural resources of the State of Wyoming (the "State and to act on behalf of the State in certain matters relating to the WWNRT. 5. Wyoming Statutes section 9- 15- 103(d)(i) provides that the WWNRT is empowered to disperse money for the "Improvement and maintenance of existing terrestrial habitat necessary to maintain optimum wildlife populations. 6. Wyoming Statutes section 9- 15- 103(d)(ii) provides that the WWNRT is empowered to disperse money for the "Preservation of open space by purchases or acquisition of development rights;" 7. Wyoming Statutes section 9- 15- 103(d)(v) provides that the WWNRT is empowered to disperse money for the "Conservation, maintenance, protection and development of wildlife re- sources, the environment, and Wyoming's natural resource heritage;" For purposes of this Easement, the following terms and phrases shall have the meaning given to them below. Additional definitions are sometimes expressly provided in the body of this Easement. The terms "Code" and "Regulations" means the Internal Revenue Code of 1986, as amended, and the Treasury Regulations promulgated thereunder, respectively, and shall include reference to the comparable provisions of any subsequent revision of the Code and/or Regulations. The terms "currently" or "existing," and variations thereof, means existing or current at the time of the recordation of this Easement. Clark.clark. wsga It.pur.ce. final.7.6.12.doc DEFINITIONS 4 The phrase "Alteration of Habitat" shall mean any change in the existing relatively natural habitat for plants or animals which habitat is part of the Conservation Values (defined below) of the Property which change is not a habitat enhancement (also defined below). The terms "Agriculture" and "Agricultural" include grazing, pasturing, feeding, watering and, in general, care for livestock of every nature including the keeping, pasturing, raising, training, and /or boarding of horses; crop production, including soil preparation, seeding, cultivating, irrigation and harvesting hay, grain, alfalfa, vegetables, and other crops common to the region of Wyoming within which the Property is located; the operation of a nursery which may include the use of one or more greenhouses; and the continuation of traditional agricultural and ranching uses, including, but not limited to, replacing or building new fences, stack yards for hay storage, replace existing or install new culverts, construct or repair bridges crossing ditches, canals, etc., as are common to such region. Agriculture and Agricultural also include the use of currently accepted and, in the future, newly developed means of livestock and crop production. The phrase "Associated Improvements" means such buildings, structures, and improvements as are customarily accessory to non commercial single- family residential dwellings and Agricultural activities in the region of Wyoming within which the Property is located, including but not limited to garages, barns, sheds, horse facilities, corrals, shops, driveways, roads, culverts, bridges, utility lines, pools, flagpoles, greenhouses, and improvements for heating, cooling, communications, television, septic waste disposal facilities and domestic water supply. The term "Building Envelope" shall mean a designated area on the Property in which the right to residential and other structures is reserved. The term "Building Footprint" shall mean the first floor area of any building enclosed within walls (whether three (3) walls or four (4) walls), measured from the outside of the building's walls. The terms "day" or "days" means calendar day or days, unless otherwise expressly provided. The phrase "Habitat Enhancement" means an improvement in the existing relatively natural habitat for plants or animals which habitat is part of the Conservation Values of the Property. It does not mean an alteration of existing habitat to another form of habitat. The term "Impervious Surface" shall mean any paved surface (by concrete, asphalt and the like, but excluding gravel or packed earth) and the area covered by any building footprint (exclusive of roof overhangs), patios and /or ground level decks; impervious surface shall not be deemed to include roads, drives, pathways, and vehicle trails permitted by the terms of this Easement outside of a designated Building Envelope, but shall include such areas, if paved, within a Building Envelope. Clark.clark. ws ga lt. pur. ce. final.7.6.12. doc 5 003t1: The phrase "Indemnified Parties" shall refer to Grantee's officers, employees and Board members, and their heirs, successors and assigns. The term "necessary" shall be interpreted to limit the use to which it applies to that which is essential to the accomplishment of such use. The term "reserved" means a use of the Property that is expressly reserved by Grantor as a right under the terms of this Easement. The term "Residence" means a single family dwelling containing, at a minimum, permanently installed cooking facilities and indoor or outdoor sanitary facilities. A Residence may include household guest and employee quarters and a customary home occupation or professional office for the occupant and may have Associated Improvements. The term "use" means physical use of the Property or any part thereof, or an activity on the Property or any part thereof. C lark.clark. wsgalt.pur.ce. final.7.6.12.doc EASEMENT GRANT SECTION 1. CONSERVATION PURPOSES SECTION 2. RIGHTS OF THE GRANTEE 6 0031 NOW, THEREFORE, in consideration of the mutual covenants, terms, conditions, and restrictions contained herein, and pursuant to the provisions of the Wyoming Uniform Conservation Easement Act, Sections 34 -1 -201 through 34 -1 -207 of the Wyoming Statutes (the "Act and pursuant to Section 170(h) of the Code and the laws of the State of Wyoming, Grantor hereby grants and conveys to the Grantee and its successors and permitted assigns, as a qualified "bargain sale" pursuant to Sections 1011(b) and 170 of the Code, a conservation easement (the "Easement in perpetuity over the Property to the extent herein set forth. Grantor herein declares that the Property shall be held, mortgaged, encumbered, transferred, sold, conveyed, used, and occupied subject to the covenants, conditions, restrictions, and easements herein, which shall be deemed to run with the land in perpetuity. The Grantor binds itself to monitor the use of the Property, and to enforce the restrictions on the future use of the Property imposed by this Easement, in perpetuity. The Parties intend, by thus controlling and limiting the rights to the future use of the Property, to permanently protect the Conservation Values of the Property for the benefit of the public, and to permanently conserve the Property. 1.1 Conservation Purposes. The "Conservation Purposes" of this Easement are (i) to preserve the Conservation Values, and other significant conservation interests (to the extent that it is not necessary to impair such other interests in order to protect the Conservation Values), and (ii) to restrict the use of the Property to those uses that are consistent with such values and interests by limiting nonagricultural uses of the Property. 2.1 Preservation and Protection. Grantee has the right to preserve and protect in perpetuity the Conservation Values of the Property in the manner set forth in this Easement. 2.2 Access. Grantee has the right to enter upon the Property, after reasonable notice and in a manner not to interfere with Grantor's activities, to monitor the Grantor's compliance with and otherwise enforce the terms of this Easement. Grantee shall also have the right of immediate entry to the Property without notice if, in Grantee's reasonable judgment, such entry is necessary to prevent damage to or the destruction of the Conservation Values or any of them, which entry will be reasonably exercised and will be limited to that necessary to prevent such damage or destruction. Grantee shall provide a written description of the reason for and nature of any such immediate entry to Grantor as soon as practical after such entry. 2.3 Enforcement, Injunction and Restoration. Grantee has the right to obtain injunctive or other relief against any activity or use of Grantor's land that is inconsistent with the Easement and to enforce the restoration of such areas or features that may be damaged by such activities and to obtain damages for any violation of this Easement, all as provided in Subsection 7.6 below. In the event a controversy arises with respect to the condition of the Property, the Parties may utilize the Baseline Documentation and any other relevant document, survey, or other information to assist in resolving the controversy. 2.4 Events Beyond Grantor's Control. Nothing contained in this Easement shall be construed to entitle the Grantee to bring any action against Grantor for any injury to or change in the Property resulting from causes beyond Grantor's control, including acts of trespassers or the unauthorized wrongful acts of third persons, fire, flood, storm, acts of God, climate change, earth movement, and major tree disease, or from any prudent action taken by Grantor under emergency conditions to prevent, abate, or mitigate significant injury to the Property resulting from such causes. 3.1 Prohibited Uses. Any activity or use of the Property inconsistent with the Conservation Purposes is expressly prohibited. Except as specifically allowed in Section 4 of this Easement, the following uses of the Property are inconsistent with the purposes of this Easement and are prohibited: (a) Subdivision. Division, subdivision, or de facto subdivision of the Property into separate tracts; or the conveyance of any portion of the Property, even though it may represent a free standing parcel, separately from any other portion of the Property. (b) Construction. Construction of buildings, structures, or facilities, including mobile homes except as expressly reserved in Section 4 and its subsections. (c) Industrial Use. The placement, construction or operation of any industrial facilities on the Property. (d) Commercial Use. The placement, construction or operation of any commercial facilities on the Property except as expressly reserved in Section 4 and its subsections. Clark.clark. wsgalt.pur.ce.final.7.6.12.doc SECTION 3. PROHIBITED ACTIVITIES 7 003V 093 (e) Mineral Extraction. The extraction of minerals by surface or subsurface mining techniques to the extent that Grantor can control mineral development. With regard to third party mineral extraction on the Property, Grantor shall make reasonable efforts to require any third party who owns subsurface mineral rights on the Property to extract the subsurface minerals by extraction methods that will minimize the impact to the Conservation Values of the Property and the purposes of this Easement. Grantor shall request through reasonable efforts that all damaged or disturbed areas be restored or reclaimed to its original condition, to the extent possible, and that extraction facilities are to be concealed or otherwise located as to be compatible with existing topography and landscape to the extent practicable. Grantor represents to Grantee that the mineral interest in and to a portion of the Property is owned by third parties and a split estate exists. Grantor shall have the right and obligation to negotiate all surface use agreements which involve the exploration and development of the mineral interest estate. Grantor shall ensure that all such surface use agreements comply with the terms of this Easement and protect the Conservation Purposes and Conservation Values. In addition, Grantor shall be required to obtain Grantee's written consent to all surface use agreements by having Grantee as a signatory to all surface use agreements, and Grantee's written consent shall not be unreasonably withheld. Any compensation received pursuant to said surface use agreements shall be divided between Grantor and Grantee using the following ratio: Grantor -34.0% and Grantee 66.0 (f) Consent to Mining. Consent to any mining or surface mining on the Property under Wyoming Statute Section 35- 11- 401(b)(xi) of the Wyoming Environmental Quality Act or other applicable laws. (g) Waste Dumps; Hazardous Materials; Storage. (i) Dumping or disposal of waste which is toxic to humans or wildlife or which threatens other Conservation Values of the Property; (ii) The installation of underground storage tanks or the use of the Property as a storage facility for hazardous waste or junk or any kind of refuse generated off the Property; or (iii) release or deposit of any petroleum products, explosives, hazardous substances, toxic substances, or any other substance which may pose a present or potential hazard to human health or the environment at any time, except as expressly reserved in Section 4 or its subsections. The prohibitions in this Subsection 3.1(g) do not impose liability on Grantee with respect to the Property, nor shall Grantee pursuant to this, or any other provision of this Easement, with respect to the Property, be construed as having liability as an "owner or operator" or other "responsible party" within the meaning of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended "CERCLA or similar federal, state, or local laws. (h) Impervious Surfaces. Paving all or any portion of the Property with concrete, asphalt, or any other impervious material, except as expressly reserved in Section 4 and its subsections. The total area of impervious surfaces shall not exceed two percent (2 of the total area of the Property. Impervious surfaces include areas that are paved, covered by concrete or occupied by buildings, with or without floors. Clark.clark. wsgalt.pur.ce. final.7.6.12.doc 8 0 (i) Alteration of Topography. The alteration of the topography of the Property, except as expressly reserved in Section 4 and its subsections. (j) Billboards. The construction, maintenance, or placement of signs including billboards, except as expressly reserved in Section 4 and its subsections. Billboards include any roadside or riverside signs. Expressly excepting from this restriction, Grantor reserves the right to construct, maintain, remodel and replace the sign identifying the Button family graves adjacent to the road traversing the eastern portion of the Property, and any such sign shall have a maximum size of four feet by four feet (4'x4'). (k) Towers and Facilities. Construction, placement or use of any transmission or receiving tower, or energy facility, except as expressly reserved in Section 4 or its subsections. (1) Water Rights. The transfer, sale, lease or other separation of water rights from the Property, except as expressly reserved in Section 4 and its subsections. Grantor shall retain water rights sufficient to allow continued Agricultural production. (m) Water Courses. The alteration of natural water courses, except as expressly reserved in Section 4 and its subsections. (n) Feedlots. The establishment, placement, use or maintenance of any feedlot, defined for purposes of the Easement as a permanently constructed confined area or facility within which the land is not grazed or cropped annually, for purposes of engaging in the business of the reception and feeding of livestock for hire, but not including existing or similar corrals used for holding and feeding Grantors' livestock. This provision shall not be deemed to prohibit feeding of livestock in fenced pastures during the winter season. (o) Motorized Vehicle Use. The use or parking of motorized vehicles for commercial purposes which are unrelated to Agricultural uses or purposes. (p) Structures. The construction, placement or use of any structures except as expressly reserved in Section 4 and its subsections. Clark.clark. wsgalt.pur.ce.final.7.6.12.doc SECTION 4. GRANTOR'S RESERVED RIGHTS 4.1 General Reserved Rights. Grantor reserves to itself, and to its successors and assigns all rights accruing from its ownership of the Property, including the right to engage in, permit, or invite others to engage in all uses of the Property that are not expressly prohibited herein, which are consistent with the Conservation Purposes, and which do not impair or threaten the Conservation Values. Any activity or use of the Property not specifically included in Section 3, shall be deemed a reserved right under this Section 4. The following uses comply with the requirements of the preceding sentence and are expressly excepted and reserved by Grantor: 9 0031+ (a) Agriculture. The right to conduct Agricultural activities. In addition, Grantor reserves the rights to process and /or market Agricultural products produced or raised on the Property. (b) Roads and Utilities. The rights to construct, maintain, and use roads, trails and utilities, with associated culverts, bridges, ditches, fences, and gates and cattle guards, if reasonably necessary for reserved agricultural purposes or for access to or to serve reserved buildings, building envelopes, floating building envelopes or other expressly reserved uses. To grant utility easements for utilities provided that the Grantee determines that such installation is not inconsistent with the purpose of the conservation easement and is done in such a manner as to minimize to the greatest extent possible, impact on soils. If Grantee determines it is impractical to locate any new or replacement utility underground, then such utility shall be located in a manner that has minimal impact to the conservation values as set forth above. (c) Cutting or Clearing Vegetation. In addition to the rights reserved in Subsection 4.lError! Reference source not found., to selectively cut or clear vegetation and mow hayfields or pastures for reserved Agricultural purposes, fire protection, the preservation of vistas, wildlife habitat, or otherwise to preserve the current condition of the Property. (d) Irrigation Facilities. To construct, maintain, develop, alter and /or use irrigation facilities, including sprinkler irrigation systems, ditches, head gates, diversion structures, pipelines, and reservoir systems on the Property if such actions are necessary or beneficial for Agriculture uses or purposes, grazing livestock, wildlife or fisheries on the Property as expressly reserved in this Easement. This provision expressly includes the same rights and privileges to construct, maintain, develop, alter and /or use irrigation facilities, including ditches, head gates, diversion structures, pipelines, and reservoir systems which are owned by third parties and which are located on the Property and which are consistent with said third parties water rights. (e) Water Rights. To use all of Grantor's rights, title, and interest in and to all tributary and non tributary water, water rights, and related interests, in, on, under, or appurtenant to the Property for present and future reserved Agricultural production on the Property, and to acquire additional water rights for reserved Agricultural uses and other reserved activities on the Property. This includes, but is not limited to, changing or modifying the point of diversion for any water right and changing or modifying any head gate or diversion structure. (f) Wells and Septic Systems. To drill, complete, and produce water wells for the production of water on the Property and to develop, use and /or maintain water wells and /or septic systems for any reserved uses on the Property, including Agricultural uses and purposes. (g) Fences. The right to build, maintain, replace, remove, relocate and repair fences for reserved Agricultural uses or purposes or ranching purposes and for the protection of any Conservation Value at any location on the Property. This includes all fences of convenience which may or may not be located on the property line of the Property. To the extent Grantor Clark.clark. wsgalt.pur.ce. final.7.6.12.doc 1 0 00320 builds new fences, Grantor shall build and locate such fences in a manner that will not materially adversely impact the migration of wildlife across the Property. (h) Trees. To selectively plant, trim, prune, remove or harvest trees for range enhancement, irrigation, fences or insect control and for Agricultural uses and purposes. Grantor may harvest timber for posts, poles, firewood and other Agricultural uses. Timber cut pursuant to this provision may be sold commercially, or used for other reserved purposes on the Property, provided that such sale or use is purely incidental to the right reserved in the first sentence of this Subsection 4.1Error! Reference source not found.. With regard to all forest management and timber harvesting activities not provided for in this subsection, Grantor and Grantee shall enter into a written forest management plan consistent with the Conservation Purposes for the purpose of such activities. (i) Burning. To conduct controlled burning of rangeland and to accumulate and burn general non -toxic household and Agricultural trash generated on the Property, so long as this activity is confined to a minimum number of controlled burn areas. (j) Pesticides and Herbicides. To use chemical fertilizers, herbicides, pesticides, fungicides, and natural controls in connection with any reserved Agricultural use, purpose, or activity on the Property, and for the control of noxious weeds, and pests, provided that such use shall be in compliance with manufacturers' instructions. (k) Leasing. To lease all or any portion of the Property for any use or activity that is expressly reserved in this Easement, provided that such lease(s) are subject to the terms of and expressly refer to this Easement. (1) Recreation. Commercial and Non commercial recreational activities, such as, but not limited to hunting, fishing, hiking, horseback riding, camping, picnicking, bird watching are allowed. Grantor also excepts and reserves the right to conduct these activities by Grantor, employees, independent contractors, or third parties. De minimis commercial recreational activities as defined and provided in Section 2031(c)(8)(B) of the Code, which may include the selling of licenses, permission rights, or trespass fees to individuals to hunt and /or fish on the Property are allowed. (m) Use of Vehicles. To use motorized vehicles, tractors and equipment, including snowmobiles and all terrain vehicles, for access to buildings and structures reserved on the Property, and as is necessary to support reserved Agricultural uses, Agricultural purposes, forestry, habitat management, law enforcement, public safety, conservation uses, and the residential uses as otherwise reserved herein, over existing and permitted drives and vehicle trails and off said roads and trails for Agricultural uses and purposes. Off -road use of vehicles shall be limited to uses necessary (i) for fire suppression; (ii) for emergency or severe weather winter access when ordinary vehicle access is not available; (iii) for reserved Agricultural uses and purposes; and (iv) in connection with traditional recreational uses reserved herein. Grantor also reserves the right to park vehicles on a temporary or long term basis in reserved Building Clark.clark. wsgalt.pur.ce. final.7.6.12.doc 11 Envelopes, and temporarily anywhere on the Property when such vehicles are necessary to a right reserved herein. (n) Habitat Enhancement. To undertake Habitat Enhancement, including the construction of ponds or other water projects. Outside of any Building Envelope, such enhancement shall require the advance written approval of Grantee, which approval shall not be unreasonably withheld. (o) Alteration of Water Courses. To alter existing natural water courses, but only for (i) irrigation, including but not limited to head gates and diversion structures to support reserved Agricultural uses, (ii) flood control, (iii) reservoir construction for livestock, wildlife and scenic purposes, (iv) installation, maintenance, and use of bridges and culverts, (v) improvements to a creek or river for purposes of fishery habitat improvement, restoration, maintenance or improvement and (vi) improvements to a creek or river for the purpose of restoration or maintenance of the natural courses of streams and /or the stabilization of stream banks. (p) Agricultural Support Structures. (i) To replace, reconstruct, place, use and /or maintain existing structures that are accessory to reserved Agricultural uses, purposes, and activities such as, but not limited to, watering facilities for livestock, including stock water wells and stock tanks (which may be wind, solar or electrically powered), corrals, pens, facilities for the loading of livestock for transport from the Property, livestock shelters, barns, wind breaks, fences, structures for the storage of hay produced from and /or used for reserved Agricultural uses. (ii) To construct, use and maintain new structures that are necessary and accessory to reserved Agricultural uses, purposes, and activities, but such new structures are limited to: watering facilities for livestock, including stock water wells and stock tanks (which may be wind, solar or electrically powered), corrals, pens, facilities for the loading of livestock for transport from the Property, wind breaks, fences, and structures for the storage of hay produced from and /or used for reserved Agricultural uses. (q) Signs. To construct, place, use and maintain signs on the Property for posting the name of the Property, advertising businesses which occur on the Property, controlling public access, fishing access and use, providing public notification of this Easement or advertising the Property for sale. (r) Alteration of Topography. To alter the topography of the Property as necessary for other uses expressly reserved in this Easement. (s) General. To make any other use of the Property that is consistent with the Conservation Purposes, provided that Grantor shall obtain the written approval of Grantee prior to undertaking such uses, which approval shall not be unreasonably withheld. Uses reserved pursuant to this Subsection 4.1(s) shall not be deemed "expressly reserved" for any other purpose of this Easement. Notwithstanding the foregoing, no use may be approved pursuant to this 12 Clark.clark. wsga It. pur. ce. final.7.6.12. doc 0321 Subsection 4.1(s) unless the approval is consistent with the requirements set forth in Subsection 7.13 or Section 6 for the amendment or termination of this Easement. 4.2 Residences and Associated Improvements. To construct, locate, own, use, lease, maintain, repair, renovate, remove, relocate, replace and reconstruct (collectively for purposes of this Subsection 4.2 "To Use structures on the Property, subject to the following provisions. reserved. (a) No Residences are located on the Property and no "Building Envelope" is 4.3 Commercial Uses. Customary rural enterprises are allowed, as long as they are conducted in a manner that is consistent with the Code and the Regulations, are consistent with the purposes of this Easement, and do not substantially diminish or impair the Conservation Values. Without limiting other potential uses that meet the foregoing criteria, the following uses are allowed: processing or sale of farm or ranch products predominantly grown or raised on the Property; home occupations conducted by and in the home of a person residing on the Property; wildlife viewing; habitat enhancement; and other customary rural enterprises, such as hunting, fishing, farm machinery repair, bed and breakfasts, livestock veterinary services, and similar enterprises conducted by Grantor, an employee, an independent contractor, a third person with the necessary consent or permission of Grantor, or by another person residing on the Property with the necessary consent or permission. For any use not expressly enumerated in this paragraph, Grantor shall provide Grantee with written notice of Grantor's proposed use prior to commencing such use. Grantor may commence the proposed use on the Property only with Grantee's written approval, which shall not be unreasonably withheld, so long as the proposed use does not materially adversely affect the Conservation Values of the Property nor is specifically prohibited elsewhere in this document. SECTION 5. ASSIGNMENT BY GRANTEE; TRANSFERS BY GRANTOR 5.1 Limitations on Assignment by Grantee. This Easement may be assigned by Grantee, but only if the following conditions have been met prior to such assignment: (i) the Secretary of Agriculture of the United States, or his or her designated agent, shall have approved such assignment in writing; (ii) the assignee, at the time of such assignment, qualifies under Section 170(h)(3) of the Code and under Wyoming Statues 34 -1 -201 et seq. as a "qualified organization" and under the Act as an eligible holder of conservation easements; (iii) the assignee agrees in writing that it will carry out the Conservation Purposes in perpetuity; (iv) Grantee provides at least thirty (30) days prior notice to Grantor of the proposed assignment. In the event that Grantor has any preferences with regard to a proposed assignee, it shall so notify Grantee and Grantee shall make a good faith effort to assign this Easement to Grantor's proposed assignee, provided that such assignee meets the requirements of provisos (i), (ii) and (iii) of this Subsection 5.1. Any attempted assignment by the Grantee of the benefits of this Easement contrary to the terms hereof shall be invalid but shall not operate to extinguish this Easement. 5.2 Transfers by Grantor. Grantor agrees to incorporate by reference the terms of this Easement in any deed or other legal instrument by which Grantor transfers any interest in all or a Clark.clark.wsgalt.pur.ce.finaL 7.6. I2.doc 13 00322 Clark.clark.wsgalt.pur.ce. final.7.6.12.doc 0032 portion of the Property, including a leasehold interest. Grantor further agrees to give written notice to the Grantee of the transfer of any such interest at least thirty (30) days prior to such transfer. The failure of Grantor to perform any act required by this paragraph shall not impair the validity of this Easement or limit its enforceability in any way, nor shall it impair the validity of such transfer. SECTION 6. EXTINGUISHMENT; CONDEMNATION 6.1 Extinguishment. In the event that this Easement is extinguished as to all, or a portion, of the Property, Grantee shall be entitled to a share of any proceeds resulting from the conveyance of the underlying Property on the terms contained in this Section 6. This provision is required by Section 1.170A- 14(g)(6)(ii) of the Regulations for a "qualified conservation contribution," and is intended by the Parties to comply with such Regulations, and to entitle Grantee to all of the rights that such Regulations require that a "donor" grant to a "donee organization" with respect to a qualified conservation contribution. 6.2 Value of this Easement. This Easement constitutes a real property interest immediately vested in Grantee with a fair market value that is at least equal to the proportionate value that this Easement, as of the date of conveyance, bears to the value of the Property as a whole at that time. This proportionate value shall remain constant. The Parties agree that for purposes of this Easement the percentage the fair market value of this Easement bears to the fair market value of the entire Property (surface estate only) is: 66.00 The values applicable for purposes of the calculations required by this Subsection 6.2 shall be the values finally used to determine the value of this Easement for purposes of any federal income tax deduction finally allowed with respect to the conveyance of this Easement. In the event that no federal income tax deduction is claimed with respect to the conveyance of this Easement, the values for purposes of this Subsection 6.2 shall be the purchase price of this Easement. 6.3 Payment in the Event of Extinguishment. In the event of an unexpected change in circumstances surrounding the Property that makes impossible or impractical the continued use of the Property for the Conservation Purposes, and any or all of the restrictions of the Easement are extinguished by a judicial proceeding, or if for any other reason this Easement is terminated as to all, or a portion, of the Property, Grantee, on a subsequent sale, exchange, or involuntary conversion of the Property, or any portion thereof, shall be entitled to a percentage of the proceeds of such sale, exchange or involuntary conversion, equal to the proportionate value determined according to Subsection 6.2, provided that to the extent that the Easement is not fully extinguished or terminated, but rather only some of the restrictions are extinguished or terminated, the Grantor and Grantee shall mutually agree as to the proper ratio to use for apportioning any such proceeds. In the event that such proportionate value was determined without regard to structural improvements existing on the Property at the time of the conveyance, then such improvements shall be disregarded in determining the amount of such proceeds, etc. to which Grantee is entitled hereunder. In any event, the value of structural improvements made to the Property after the date of conveyance shall be disregarded in determining such amount. 14 0032 6.4 Extinguishment, Termination and Condemnation. Pursuant to its right of enforcement, the United States must consent to any subordination, termination or extinguishment, in whole or in part, of this Easement. For any eminent domain action where the Easement remains in place, the United States' consent will not be required; however, any disturbance of the surface estate pursuant to the eminent domain action will require restoration of the surface estate, within 6 months from the completion of the installation or repair, weather permitting, to ensure the continued use of the property consistent with the conservation purpose of this Easement. If all or a part of the Property encumbered by this Easement is taken, in whole or in part, by exercise of the power of eminent domain, the proceeds of any award resulting therefrom, or from any settlement in lieu of condemnation, shall be divided between Grantor and Grantee in conformity with the provisions of Subsection 6.3 unless otherwise provided for by applicable law at the time of such exercise of the power of eminent domain, and the Grantee shall pay a portion of its proceeds to the United States and the State of Wyoming in accordance with Subsection 6.5. 6.5 Payment to the United States and the State of Wyoming. Because they have contributed funds to the purchase of this Easement, the United States and the State of Wyoming are hereby granted by the Parties the right to receive a portion of any proceeds due Grantee according to the provisions of this Section 6. The amount payable to the United States shall be equal to fifty percent 50.00% of the amount payable to Grantee pursuant to this Section 6, based upon the amount paid by the United States by and through NRCS /FRPP through the Farm and Ranch Lands Protection Program towards said purchase, and the value of this Easement determined according to the provisions of Subsection 6.2. The amount payable to the State of Wyoming shall be equal to twenty -one percent 21.00% of the amount payable to Grantee, based upon the amount paid by the State of Wyoming through the Wyoming Wildlife and Natural Resource Trust towards said purchase, and the value of this Easement determined according to the provisions of Subsection 6.2. The amount due the State of Wyoming shall be payable to the Wyoming Wildlife and Natural Resource Trust, provided that it is then in existence. If it is not then in existence, the amount due the State of Wyoming shall be paid as directed by the Governor. 6.6 Use of Proceeds by Grantee. Grantee shall be entitled to the remaining twenty nine percent 29.00% of the amount payable to Grantee pursuant to Subsection 6.2. Any proceeds received by the Grantee pursuant to this Section 6, and subsequent to the payments to the United States and State of Wyoming, pursuant to Subsection 6.5, shall be used by Grantee in a manner that is consistent with the Conservation Purposes. 6.7 Review and Transaction Cost Reimbursement. Grantee shall be reimbursed for its reasonable and necessary expenses, including, but not limited to, reasonable attorneys' fees, incurred in reviewing requests or proposals made by third parties which impact the Property and as provided for under the terms of this Easement. Such reimbursement shall be the responsibility of the third party making the request or proposal. Clark.clark. wsgalt.pur.ce. final.7.6.12.doc 15 SECTION 7. GENERAL PROVISIONS 0032 7.1 Governing Law: Conflict and Choice of Laws. This Easement has been executed and delivered, and is intended to be performed in the State of Wyoming. This Easement, in all instances and regardless of the jurisdiction, forum, court or other tribunal, shall be governed by, enforced, and interpreted in accordance with the laws of the State of Wyoming Exclusive jurisdiction and venue for any dispute relating to this Easement shall reside in the State of Wyoming, District Court located in Lincoln County, Wyoming. The parties agree and expressly consent to the exercise of personal jurisdiction in said court in connection with such dispute. Notwithstanding the above limitations, with regard to federal tax issues only, the laws of the United States shall control. 7.2 Severability. If any provision of this Easement or the application thereof to any person or circumstance is found to be invalid, the remainder of the provisions of this Easement shall not be affected thereby. 7.3 Entire Agreement. This Easement and any exhibits attached hereto, sets forth the entire agreement of the Parties with respect to the Easement and supersedes all prior discussions, negotiations, understandings, or agreements relating to the Easement, all of which are merged herein. 7.4 Successors. The covenants, terms, conditions, and restrictions of this Easement shall be binding upon and inure to the benefit of the Parties hereto and their respective personal representatives, heirs, successors, and assigns and shall continue as a servitude running in perpetuity with the Property, provided that (i) no owner shall be responsible except for violations occurring on such owner's land during the time of such owner's ownership; (ii) in the event of a breach of the terms hereof by the owner or owners of any portion of the Property, no owner or owners of any other portion of the Property shall be liable for such breach. 7.5 Notices. Any notice, demand, request, consent, approval, or communication that either party desires or is required to give to the other shall be in writing and either served personally or sent by first class mail, postage prepaid, addressed as follows: To Grantor: C lark.clark. wsgalt.pur.ce.final.7.6.12. doc Clark Country Ranch, LLC c/o Lowell and Eva Clark 12199 Highway 232 P.O. Box 249 Cokeville, Wyoming 83114 E -mail: eclark @allwest.net 16 To Grantee: Wyoming Stock Growers Agricultural Land Trust 113 East 20th Street Cheyenne, Wyoming 82001 Fax No.: (307) 634 -1210 E -mail: graham @wsgalt.org 0032 To United States: State Conservationist United States Department of Agriculture/ Natural Resource Conservation Service P.O. Box 33124 Casper, Wyoming 82602 E -mail: 1 heIton @wy.usda..gov s To State of Wyoming: Executive Director Wyoming Wildlife and natural Resources Trust 500 East Fremont Riverton, Wyoming 82501 E -mail: bob.budd @wyo.gov or to such other address as any of the above Parties from time to time shall designate by written notice to the others. Notice of change of address shall be effective only when done in accordance with this Subsection 7.5. Such notices shall be deemed to have been "given" (i) when actually delivered, in the case of personal delivery; (ii) when delivered as confirmed by an official return receipt if sent by certified mail; or (iii) within two (2) business days of deposit with a courier in the case of U.S. Express Mail, or commercial overnight courier; (b) Written Notice to Grantee Required. Grantor hereby relinquishes any right to use the Property in ways that may be inconsistent with the Conservation Purposes, or with respect to which permission of the Grantee is expressly required by the terms of this Easement, except the Grantor's Reserved Rights as set forth in Section 4, until it has notified Grantee in accordance with this Subsection 7.5, and obtained approval therefore from Grantee. (c) Response by Grantee. Grantee shall, within a reasonable time after receipt of a request hereunder, respond in writing to any request for approval by Grantor made in compliance with this Subsection 7.5. Until expressly permitted in writing by Grantee, Grantor shall not commence the activity described in the notice. Clark.clark.wsgalt.pur, ce. final.7.6.12.doc (a) Form of Notice. Any notices, demands or other communications required or permitted to be given by the terms of this Easement shall be given in writing and shall be delivered (i) in person (such delivery to be evidenced by a signed receipt); (ii) by certified mail, postage prepaid, return receipt requested; or (iii) by U.S. Express Mail or commercial overnight courier. 17 All activities requiring prior written approval by Grantee shall be conducted consistently with such approval when granted. In the event that Grantee objects to the proposed activity it shall inform Grantor in writing of the manner, if any, in which the proposed activity can be modified to satisfy its objections. Thereafter, Grantor may submit a revised proposal accommodating the objections, and Grantee shall review and respond to such revision in the same manner as to the original notice. Any objection by Grantee to a proposed activity shall be based upon its opinion that the proposed activity is inconsistent with this Easement, and /or upon any specific standards provided for herein. Except where Grantee reserves the right to make a decision in its sole discretion, Grantee shall use reasonable discretion in determining whether or not a proposed activity is consistent with the terms of this Easement, and /or any such standards. In no event may Grantee permit any activity on the Property that would be inconsistent with the Conservation Purposes. 0032? (d) Content of Notices. All notices required by this Easement shall be in writing, and shall provide sufficient information, in addition to any information required by other provisions of this Easement, to allow, in the case of notice to Grantee, Grantee to determine whether the proposal is consistent with the Conservation Purposes. In the case of notice to Grantor, the notice shall inform Grantor of the purpose of the notice, and the provision(s) of this Easement with respect to which the notice has been sent. 7.6 Enforcement of this Easement. If Grantee finds what it believes is a violation, Grantee shall promptly notify Grantor, the WWNRT, and the United States in writing of the alleged violation. (a) Right to Injunction, etc. The Parties recognize that money damages, or other non injunctive relief, may not adequately remedy a violation of the terms of this Easement. Therefore, the Parties hereby agree that any violation shall be subject to termination through injunctive proceedings, including the imposition of temporary restraining orders, preliminary injunctions, specific performance, or any other legal means. The Parties also agree that no proof of damages, or the inadequacy of other remedies, shall be required of either Party, in seeking any such injunctive relief. No bond shall be required of either Party in seeking an injunction. (b) Right to Restoration. In addition, Grantee shall have the right to enforce the restoration of any, and all, of the Conservation Values damaged by activities inconsistent with the Conservation Purposes. Such restoration shall be, as nearly as possible, to the condition that existed on the date of the recordation of this Easement, except for such changes as may have been made to the Property that are consistent with the terms of this Easement. (c) Right to Recover Damages. In the event of a violation of the terms of this Easement, in addition to the other remedies provided for in this Subsection 7.6, and any Clark.clark. wsgalt.pur.ce.fina1.7.6.12.doc 18 other remedies available in law or equity, Grantee shall also be entitled to recover all damages necessary to place Grantee in the same position that it would have been in but for the violation. The Parties agree that in determining such damages the following factors, among others, may be considered (i) the costs of restoration of the portion of the Property actually damaged as provided in Subsection 7.6(b) above, and (ii) the full market cost of purchasing a conservation easement containing terms comparable to the terms of this Easement on land in the vicinity of the Property, of a size, and with conservation values, roughly comparable to those of the size of the portion of the Property actually damaged by such actions. In no event shall the amount of damages recoverable exceed the proportionate value that the actually damaged property bears to the Property and subject to the provisions of Subsection 6.2 above. (d) Costs and Attorney's Fees. In addition to any other damages to which it may be entitled, in any action by a third party, Grantee and Grantor shall be entitled to recover the costs of enforcement of any of the terms of this Easement, including reasonable attorney's fees, expenses and court costs, provided that Grantee or Grantor is the prevailing party in any such action. With regard to any action between Grantee and Grantor, the prevailing party in such action shall be entitled to recover its costs, including, but not limited to reasonable attorneys' fees, expenses and court costs. (e) Right to Proceed Against Third Parties. The Grantee has the right to proceed against any third party or parties whose actions threaten or damage the Conservation Values or Conservation Purposes, including the right to pursue all remedies and damages provided in this Subsection 7.6. Grantor shall cooperate with Grantee in such proceeding. (f) Right to Require Assignment of Trespass Claims. If requested by Grantee, Grantor shall assign to Grantee any cause of action for trespass resulting in damage to the Conservation Values that may be available to such Grantor. Grantor may condition such assignment to provide for the (i) diligent prosecution of any such action by Grantee and (ii) division according to the proportionate values determined pursuant to Subsection 6.2, between Grantee and such Grantor of any recovery, over and above Grantee's attorney's fees and expenses incurred, and costs of restoration of the Property, resulting from such action. (g) Grantor's Right to Recover Damages. In the event that Grantee is found by a court having jurisdiction in the case to have willfully or wantonly, and in direct contravention of this Easement, violated the terms of this Easement, Grantor shall be entitled to recover such damages as it may have incurred as a result of such violation, together with its reasonable attorney's fees, expenses and court costs. (h) No Waiver. Failure by either Party, for any reason, to exercise the rights granted to it by this Easement, in the event of any violation of its terms, shall not be deemed to be a waiver of such Party's rights hereunder as to that, or any subsequent, violation. The Parties hereby expressly waive any defense of laches, estoppel, or prescription. (i) Right to Cure. Neither party shall proceed against the other pursuant to the provisions of this Subsection 7.6 until it has provided the other party with written notice of its Clark.clark. wsgalt.pur.ce. final.7.6.12.doc 19 00328 intent to undertake such proceeding and the reasons therefore, and has thereafter given the other party a reasonable opportunity, at least thirty (30) days from receipt of said written notice, to cure whatever violation has been described in such notice, taking into account the nature of the violation. No notice and cure period shall be required in the event that Grantee, in its reasonable judgment, determines that an immediate threat of significant damage to any of the Conservation Values exists. 7.7 Payment of Costs, Taxes or Assessments. (a) Payment of Costs of Operation, etc. Grantor shall bear all costs of operation, upkeep and maintenance of the Property. (b) Payment of Taxes. Grantor shall be responsible for the payment of all real estate taxes or assessments lawfully levied upon the Property and /or upon this Easement and /or upon Grantee as a result of its holding this Easement, and Grantee shall have no obligation, or responsibility, for the payment of such taxes or assessments. Grantee shall have the right to make any payment or to participate in any foreclosure or similar proceeding resulting from any delinquency, as necessary to protect its interest in the Property. (c) Indemnification of Grantee. Grantor shall indemnify Grantee and the Indemnified Parties from any liability or expenses incurred by Grantee in connection with the payment of the costs and /or taxes that are the subject of this Subsection 7.7. 7.8 Control of Property. The Parties acknowledge and agree that Grantee has neither possessory rights in the Property, nor any right or responsibility to control the use of the Property (except to enforce the restrictions on use of the Property provided for in this Easement), nor to maintain, or keep up the Property, and the Parties agree that Grantor retains all such rights and control exclusively. Nothing in this Easement shall be construed as giving rise to any right or ability in Grantee to exercise physical or managerial control over the day -to -day operations of the Property, or any of Grantor's activities on the Property, or otherwise to "participate in management" of the Property, within the meaning of CERCLA, or similar federal, state, or local laws. 7.9 Subordination. Any mortgage or lien arising after the date of this Conservation Easement shall be subordinated to the terms of this Easement. 7.10 Venue and Jurisdiction. The Parties agree that exclusive venue and jurisdiction for any dispute between them, or for any dispute with any third party relating in any manner to the Easement and the interpretation, enforcement or violation of any of the terms of this Easement, shall be in the State of Wyoming, District Court in Lincoln County, Wyoming. 7.11 Construction. This Easement, in all instances and regardless of the jurisdiction, forum, court or other tribunal, shall be governed by, enforced, and interpreted in accordance with the laws of the State of Wyoming. Nevertheless, any general rule of construction C lark. cl ark. ws ga l t. pur. ce. fi na 1.7.6.12. do c 20 90329 notwithstanding, the Parties agree that this Easement shall be liberally construed in favor of the grant to the Grantee to effect the Conservation Purposes, and the policy and purpose of the Act. The Parties also intend that the conveyance provided for in this Easement qualify under Sections 1011(b) and 170 of the Code as a "qualified bargain sale" and under Section 170(h) of the Code as a "qualified conservation contribution" of a "perpetual conservation restriction," within the meaning accorded those phrases by Section 1.170A -14 of the Regulations, for federal income and estate and gift tax purposes. The provisions of this Easement shall be construed accordingly. Notwithstanding the foregoing, Grantee does not hereby provide any warranty or other assurance as to the deductibility of the contribution of the interests hereby conveyed, and the conveyance of this Easement is in no way conditioned upon such deductibility. If any provision of this Easement is found to be ambiguous, an interpretation consistent with advancing the Conservation Purposes and with qualification under Section 170(h) of the Code, as aforesaid, shall be favored over any other interpretation. Neither of the Parties shall be deemed the draftsman of this Easement or any part thereof, each having had the benefit of counsel of their own choosing in negotiating its terms. 7.12 Extinguishment of Development Rights. Grantor hereby grants to Grantee all of the development rights pertaining to the Property, except for those development rights expressly reserved by Grantor herein. Development rights shall be deemed to include, but not be limited to, all development rights and development potential that are now or hereafter allocated to, implied, reserved or inherent in the Property or any portion thereof, including, but not limited to (i) all subdivision and development density rights and potential and (ii) the right to use any of the acreage of the Property in any acreage calculation having the effect of creating, or contributing to, additional development on or off the Property, whether such rights exist now or in the future under federal, state or local law, or otherwise. Grantor unconditionally and irrevocably relinquishes the right to transfer such development rights to of this Property to any other property adjacent or otherwise, or to use them for the purposes of calculating permissible lot yield, density, and development potential etc., of the Property or any other property. The Parties agree that all such development rights are hereby terminated and extinguished in perpetuity, except as specifically excepted and reserved in this Easement. As an elaboration, but not a limitation, of the foregoing, for purposes of this Subsection 7.12 the Property shall be considered to be non existent for purposes of all development rights and /or development potential, or calculations pertaining thereto, of any and every nature, except as expressly reserved by the Grantor in this Easement. 7.13 Amendment. This Easement is permanent and may not be amended without the written consent of Grantee, in its sole and absolute discretion, and any such amendment shall 21 Clark.clark. wsgalt.pur.ce.final.7.6.12.doc 00330 C la rk.clark. ws galt. pur. ce. fina 1.7.6.12. doc (a) The right to enforce the terms of this Easement; and 22 U a! also require the written consent of Grantor. Nevertheless, and regardless of whether any federal or state tax benefits were sought in connection with the original grant of this Easement, no amendment of this Easement shall be valid unless it is pursuant to the order of a court having jurisdiction in the case, or unless the action of Grantee in consenting to such amendment complies with (i) the then existing federal tax law governing publicly- supported charitable organizations (currently Code Section 501(c)(3)(A) and accompanying Regulations); (ii) with the provisions of the federal tax law governing "qualified" holders of conservation easements (currently Code Section 170(h)(3) and accompanying Regulations); (iii) Wyoming Statutes 34 -1- 201 et seq. or any regulations promulgated thereunder, and (iv) with the then existing policies of the Grantee, if any, governing the amendment of conservation easements. Any amendment shall be consistent with the purpose of this Easement. No amendment may confer prohibited private benefit on Grantor or other third parties. This Easement may only be amended with the written consent of the United States and the WWNRT, by an instrument duly executed and recorded in the real property records of Lincoln County, Wyoming. 7.14 Effective Date. Grantor and Grantee intend that the restrictions arising hereunder take effect on the day and year this Easement is recorded with the County Clerk of Lincoln County, Wyoming, after all required signatures have been affixed hereto. 7.15 Third Party Beneficiaries. There are no third party beneficiaries, intended, implied or unintended, to this Easement, except for (i) the United States pursuant to Sections 6 and Error! Reference source not found. and for (ii) the State of Wyoming which, due to its payment toward the bargain purchase of this Easement, and pursuant to Wyoming Statutes 9 -15- 401 through 9 -15 -410, is made by the Parties a third party beneficiary of this Easement. In recognition of said statutory provisions, the Parties grant the following rights to the State of Wyoming: (b) If this Easement is transferred (except for transfers in accordance with the provisions of Section 5 hereof) or extinguished, the right to recover the state's pro rata share of funds provided for the creation of this Easement up to one hundred percent (100 of the funds granted by the State of Wyoming through the Wyoming Wildlife and Natural Resources Trust for the purchase of this Easement, according to the provisions of Section 6 hereof. 7.16 Recognition of Mineral Estate. As required by Wyoming Statutes Section 9 -15- 107 and Section 34 -1 -202, the Parties recognize that this Easement does not affect the rights of any third parties with an ownership interest in the mineral rights in the Property that pre -exist the recordation of this Easement, except as specifically set forth in this Easement and as specifically allowed by law. 7.17 Public Access to Property. Nothing in this Easement shall be construed to create a right of public access to the Property. Nothing in this Easement shall be construed to preclude Grantor's right to grant limited access to its invitees to use and enjoy the Property, provided that such access is allowed in a reasonable manner that does not result in uses that are inconsistent with the Conservation Values. 7.18 Environmental Attributes. Grantor hereby reserves all Environmental Attributes associated with the property. "Environmental Attributes" shall mean any and all tax or other credits, benefits, emissions reductions, offsets, and allowances (including, but not limited to, water, riparian, wetlands, endangered species, and greenhouse gas) generated from or attributable to the conservation, preservation and management of the Property in accordance with this Easement. SECTION 8. PROVISIONS REQUIRED BY THE UNITED STATES The following provisions are required as a condition to a grant made for purchase of this Easement by the United States through the Farm and Ranch Lands Protection Program. 0033`' 8.1 United States Contingent Right of Enforcement. Under this Easement, the United States is granted the right of enforcement in order to protect the public investment. The Secretary of the United States Department of Agriculture (the Secretary) or his or her assigns, on behalf of the United States, may exercise this right of enforcement under any authority available under Wyoming or federal law if Grantee fails to enforce any of the terms of this Easement, as determined in the sole discretion of the Secretary. In addition, the United States' right of enforcement of this Easement cannot be condemned without the consent of the United States. 8.2 General Indemnification. Grantor shall indemnify and hold harmless the United States, its employees, agents, and assigns, the WWNRT and Grantee and the Indemnified Parties, for any and all liabilities, claims, demands, losses, expenses, damages, fines, fees, penalties, suits, proceedings, actions, and costs of actions, sanctions asserted by or on behalf of any person or governmental authority, and other liabilities (whether legal or equitable in nature and including, without limitation, court costs, and reasonable attorneys' fees and attorneys' fees on appeal) to which the United States, the WWNRT, Grantee and /or the Indemnified Parties may be subject or incur relating to the Property, which may arise from, but are not limited to, Grantor's negligent acts or omissions or Grantor's breach of any representation, warranty, covenant, agreements contained in this Easement, or violations of any federal, Wyoming, or Lincoln County laws, including all environmental laws. 8.3 Environmental Warranty. Grantor, to the best of Grantor's present knowledge, warrants that it is in compliance with, and shall remain in compliance with, all applicable Environmental Laws, subject to those matters identified in that certain All Appropriate Inquiry (AAI) prepared by NRCS. Grantor, to the best of Grantor's present knowledge, warrants that there are no notices by any governmental authority of any violation or alleged violation of, non- compliance or alleged non compliance with or any liability under any Environmental Law relating to the operations or conditions of the Property. Except for fertilizers, pesticides and similar products used for agricultural activities, which Grantor submits were applied in conformity with applicable laws and Clark.clark. wsgalt.pur.ce. final.7.6.12. doc 23 regulations, and except for matters identified in the AAI prepared by NRCS, Grantor, to the best of Grantor's present knowledge, warrants that it has no actual knowledge of a release or threatened release of any Hazardous Materials on, at, beneath or from the Property, and Grantor hereby promises to defend, hold harmless and indemnify Grantee, the United States and the WWNRT against all litigation, claims, demands, penalties and damages, including reasonable attorneys' fees, arising from or connected with the release or threatened release of any Hazardous Materials on, at, beneath or from the Property, or arising from or connected with a violation of any Environmental Laws by Grantor or any other prior owner of the Property. Grantor's indemnification obligation shall not be affected by any authorizations provided by Grantee, the United States or the WWNRT to Grantor with respect to the Property or any restoration activities carried out by Grantee at the Property; provided, however, that Grantee shall be responsible for any Hazardous Materials contributed after this date to the Property by Grantee. "Environmental Law" or "Environmental Laws" means any and all Federal, state, local or municipal laws, rules, orders, regulations, statutes, ordinances, codes, guidelines, policies or requirements of any governmental authority regulating or imposing standards of liability or standards of conduct (including common law) concerning air, water, solid waste, hazardous materials, worker and community right -to -know, hazard communication, noise, radioactive material, resource protection, subdivision, inland wetlands and watercourses, health protection and similar environmental health, safety, building and land use as may now or at any time hereafter be in effect. "Hazardous Materials" means any petroleum, petroleum products, fuel oil, waste oils, explosives, reactive materials, ignitable materials, corrosive materials, hazardous chemicals, hazardous wastes, hazardous substances, extremely hazardous substances, toxic substances, toxic chemicals, radioactive materials, infectious materials and any other element, compound, mixture, solution or substance which may pose a present or potential hazard to human health or the environment, as such substances and wastes are defined by applicable federal and state law. TO HAVE AND TO HOLD, this Conservation Easement, unto Grantee and its successors and assigns forever. This Easement may be executed in several counterparts and by each party on a separate counterpart, each of which when so executed and delivered shall be an original, but all of which together shall constitute one instrument. IN WITNESS WHEREOF, Grantor and Grantee have set their hands under seal on the day and year set forth below. Clark. c l ark. ws ga l t. pur. ce. fina 1.7.6.12. do c 24 0033,1 WITNESS my hand and official seal. Dyanna Parker Notary Public County of r X' State of Lincoln 1. Wyoming My Commission 6 Ire s June 29, 201 My commission expires: r2 C 7 ,jots C lark.clark. wsgalt. pur.ce. final. 7.6. 1 2.doc GRANTOR: CLARK COUNTRY RANCH, LLC By Title: ,4-7-Le -7-fr Date: rj 3 STATE OF WYOMING ss. COUNTY OF The foregoing do ument was acknowledged befor me this S day of L 2012, by LOUJ.�,�` ,tc-C as(,cA(rV� e� -f. of CLA UNTRY RANCH, LLC. �I 25 00334 WITNESS my hand and official seal. Dyanna Parker Notary Public County of Lincoln State of Wyoming My Commission Ex Ires June 29, 201 My commission expires: Clark.clark.ws galt.pur.ce. final.7.6.12.doc GRANTOR: CLARK COUNTRY RANCH, LLC By -21 i Title: iiik 'LGzpAyice eA1 Date: STATE OF WYOMING ss. COUNTY OF The foregoing document was acknowledged befo e me this ?j[ day of 1�._,"t 2012, by EUc 13 CAL.( L as ,�L�4 4 .J mkt-4,6-v- of CLARK UNTRY RANCH, LLC. 25 33 The foregoing Deed of Conservation Easement is hereby duly accepted by the Wyoming Stock Growers Agricultural Land Trust. Date zI 1 fz Date STATE OF WYOMING ss COUNTY OF 1 --41/4, WITNESS my hand and official seal. AMY E. COUNTY OF LARAMIE E IR f My commission expires: '�-o\ 6 Clark.clark. wsgalt.pur.ce.final.7.6.12.doc GRANTEE: WYO STOCK GROWERS AG' i RAL LAND TRUST R I By: Its: t The foregoing document was acknowledged before me this vZ� day of P Cc,* 2012, by VO4,\�t ev-l2QL as Sm$>ve,,kveC.,r and by \i∎ O∎ v5 kaliv� as eiA t o v\ of the Wyoming Stock Growers Agricultural Land Trust, a non profit corporation under the laws of the State of Wyoming, on behalf of the corporation. Notaryblic 26 0033' ACCEPTANCE OF PROPERTY RIGHT BY THE NATURAL RESOURCES CONSERVATION SERVICE The Natural Resources Conservation Service, an agency of the United States Government, hereby accepts and approves its interest in the foregoing conservation easement deed, and the rights conveyed therein (as that interest is described by that certain Correction to Interim Final Rule issued by the Department of Agriculture, Commodity Credit Corporation and published at 74 Fed. eg. 31578 on July 2, 2009), on behalf of the United States of America. t iAng Al;111 Authorized Signatory fo State of V\ yOvvLW County of klafran6L On thisday of 2012 before me, the undersigned, a Notary Public in and for the State, personally appeared i5#rrd twae€ r)ez known or proved to me to be the pe son whose signature appears above, and who being duly sworn by me, did say that s /he is the p gv i st [title] of the Natural Resources Conservation Service, United States Department of Agriculture, is authorized to sign on behalf of the agency, and acknowledged and accepted the rights conveyed by the deed to be her /his voluntary act and deed. In Witness Whereof, I have hereunto set my hand and official seal the day and year first above written. ,,4- W''�.4''T• or the State of 11oni. YIA li •ingat L' My Commission expires: .26 Zito J' -i �C!? Mal COMMISSOtt i;` t;;. 2098 ivs NOTARY PUBLIC J.M. B1NETTE COUNTY OF i- NATRONA N2v: i r! T, 04\\■ Clark.clark.wsgalt.pur.ce. final.7.6.12. doc 27 Clark.clark. wsgalt. pur. ce. final.7.6.12.doc EXHIBITS TO DEED OF CONSERVATION EASEMENT FROM CLARK COUNTRY RANCH, LLC TO WYOMING STOCK GROWERS AGRICULTURAL LAND TRUST EXHIBIT A PROPERTY DESCRIPTION 00338 Township 26 North, Range 118 West, 6 P.M. Section 9: W /2 All located in Lincoln Co., Wyoming and containing 320 acres, more or less.